Labor & Employment

EEOC 'listening session' focuses on possible workplace discrimination via social media posts

A worker on medical leave is seen skydiving in a photograph posted on Facebook, or another social media site.

Should he or she be disciplined? What if a fellow employee who saw the photo got access to a password-protected site? Does the answer to that question differ if the photograph is printed out and handed to management?

Such queries are landing on the desks of employment lawyers with increasing frequency, and the federal agency in charge of enforcing anti-discrimination laws is pondering how they might best be answered. In a hearing last week billed by one commissioner as a “listening session,” the Equal Employment Opportunity Commission heard testimony by employment practitioners on the front lines, the Wall Street Journal reports on its At Work blog.

On the skydiving front, associate attorney Renee Jackson of Nixon Peabody said she advises clients that password-protected sites are not appropriate evidence to rely on in an internal investigation, but a hard copy taken by a fellow employee who was granted access would be a different story.

Other concerns discussed at the hearing include whether a supervisor is responsible for addressing discriminatory content in social media posts by an employee and whether an employer that recruits workers solely through social media might be engaging in age discrimination.

An EEOC press release about the session last week and a hearing agenda that links to written testimony provide additional details.

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